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Ontario’s Bill 5 will radically change Toronto City Council wards in the middle of an election already being run under an entirely different statutory framework.

However described — affront to democracy, arbitrariness, illegal executive interference that undermines current city election law — some assert there is no constitutional case to answer once the bill passes that reduces Toronto council from 47 to 25 seats.

Toronto City Council members debate the 2016 budget. Bill 5 would reduce the number of councillors from 47 to 25. (Rick Madonik / Toronto Star)

Municipalities are subject to the exclusive legislative jurisdiction of provinces. They also enjoy no constitutional protection as an order of government. A provincial legislature can repeal or amend its own existing laws, including those on municipalities, as long they do so unambiguously.

An exception is that an existing statute can stipulate the “manner and form” by which it is amended (including repealed) by a subsequent statute. Such a manner-and-form constraint must be clearly stated. Even then, however, it can often be avoided if the constraint is itself overridden through a rare two-step legislative process.

While accurate, these propositions fail to contend with a development in Canadian constitutional law that started in 1998 when the Supreme Court of Canada (SCC) recognized “unwritten principles of the Constitution.” Two principles articulated by the SCC were the principles of the rule of law and of democracy.

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The SCC has never constitutionalized municipal democracy as such. Nor am I arguing it should. However, “democracy” as an unwritten principle operates in ways not limited to protecting constitutionalized orders of government. For example, the court noted the democracy principle included “faith in social and political institutions which enhance the participation of individuals and groups in society” and was “fundamentally connected to substantive goals, most importantly, the promotion of self-government.” It is hard not to see mirrored in these values the vibrant world of local democracy.

As for the rule of law, the court emphasized it is a “highly textured expression, importing many things” that, “[a]t its most basic level … provides a shield for individuals from arbitrary state action.” It is when such notions of the rule of law meet the principle of democracy that Bill 5 is potentially in trouble.

There is a good argument that the interacting principles of democracy and the rule of law have a free-standing constraining effect — operating as what the SCC called “substantive legal obligations [that] have ‘full legal force’” — on the ability of a province to interfere in local elections that are currently underway.

If a court prefers not to go this far, it can at least embrace what the SCC called the “interpretive” and “gap-filling” roles of unwritten constitutional principles in order to determine that a “manner and form” constitutional constraint is triggered by certain provisions in the current City of Toronto Act.

It is important to note that the City of Toronto Act contains a primacy clause that makes the city’s bylaws on council composition superior to other provincial law. Section 135(2) says that, in “a conflict with a provision of any other Act or a conflict with a regulation made under any other Act, the bylaw prevails.” We sometimes refer to such clauses as quasi-constitutional in nature. The inclusion of such a clause signals that the Ontario legislature attached unusual importance to the composition provisions of the City of Toronto Act.

Section 135(4) then provides that “if the bylaw is passed in the year of a regular election before voting day,” such “bylaw changing the composition of city council does not come into force until … after the second regular election following the passing of the bylaw” (i.e. not until 2022 in the current context).

In other words, we can read the current City of Toronto Act as containing a special kind of “manner and form” rule, the express purpose of which is to prevent amending council composition in the same year as an election.

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The constitutional principles of the rule of law and democracy dovetail with other principles expressly stated in the City of Toronto Act itself, which are left intact by Bill 5 (including respect for local democracy and the duty of Ontario to consult on changes such as this).

Together, they encourage s. 135(4) to be read as constitutionally barring a new statute like Bill 5 from amending city council composition rules if the amendment is intended to affect an election in the same year as the amendment is enacted. Such a constitutional prohibition is all the stronger if the new law is introduced and enacted when an election is in full swing.

The already-underway Toronto election must only be run on the basis of the existing wards.

Craig Scott is Professor of Law at Osgoode Hall Law School of York University. He was formerly the Member of Parliament for Toronto-Danforth.

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